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Child Abuse and Neglect Part I -- Historical Overview, Legal Matrix, and Social Perspectives Mason P NORTH CAROLINA LAW REVIEW Volume 50 | Number 2 Article 3 2-1-1972 Child Abuse and Neglect Part I -- Historical Overview, Legal Matrix, and Social Perspectives Mason P. Thomas Jr. Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Mason P. Thomas Jr., Child Abuse and Neglect Part I -- Historical Overview, Legal Matrix, and Social Perspectives, 50 N.C. L. Rev. 293 (1972). Available at: http://scholarship.law.unc.edu/nclr/vol50/iss2/3 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. 1972] CHILD ABUSE AND NEGLECT CHILD ABUSE AND NEGLECT PART I: HISTORICAL OVERVIEW, LEGAL MATRIX, AND SOCIAL PERSPECTIVES MASON P. THOMAS, JR.t Terrible as the thought is to entertain, child abuse may be a regres- sion to a characteristic which comes very close to being "natural"to the human condition.' [T]he general history of the child. moves as from one moun- 2 tain peak to another with a long valley of gloom in between. The phenomenon of child abuse and maltreatment is deeply rooted in our cultural and religious history. It is as old as civilization itself. Yet the fact of child abuse has remained largely hidden and suppressed. Reform movements that have pointed out the horrors being committed upon children and attempted to provide some protection have occurred at intervals, but in time the shocking facts of mistreatment seem always to have been avoided or forgotten. One reason for this suppression of facts is our reluctance to believe that parents-whom we expect to love and protect their off- spring-could maltreat or abuse their own children, sometimes even fatally.3 Our laws and legal systems have developed over hundreds of years around the expectation that parents will love and protect. Courts have been reluctant to interfere in family government or to restrict the right of parents to correct and discipline their children. Further, they have given parents almost complete immunity from civil liability for tProfessor of Public Law and Government, Institute of Government, University of North Carolina. This article constitutes the first part of a two-part treatment on child abuse and neglect. Part 11 will deal with the development of legal and social responses to the phenomenon in North Carolina. Financial assistance for this study was provided by the Department of Health, Education and Welfare through a grant to the Division of Law and Order, North Carolina Department of Natural and Economic Resources. The author expresses his appreciation to Thomas F. Taft, third- year student at the University of North Carolina School of Law, who contributed substantially to the research and content of this article. ID. BAKAN, SLAUGHTER OF THE INNOCENTS: A STUDY OF THE BATrERED CHILD PHENOMENON 56 (197 1) [hereinafter cited as BAKAN]. 2G. PAYNE, THE CHILD IN HUMAN PROGREss 302 (1916) [hereinafter cited as PAYNE]. 3 David Bakan, a psychologist, interprets the historical purpose of child abuse as population control and a way of securing a population-resource balance. BAKAN 107, 112-114. NORTH CAROLINA LAW REVIEW [Vol. 50 injuries to their own children. One writer has interpreted this general legal situation as a "license to continue to abuse." 4 Modern X-ray technology, however, has provided new documenta- tion of physical abuse of children that has forced a reappraisal of so- ciety's responsibility to protect children, even from their own parents. As a result, child-abuse reporting laws have been adopted in all states in an effort to afford this protection. Two questions that confront one who is considering the problem of child abuse are whether reporting laws are asatisfactory answer and whether the current interest in child protec- tion is only transistory. Will child abuse and neglect fade from public concern as it has in the past? HISTORIC MALTREATMENT OF CHILDREN Over the centuries infanticide, ritual sacrifice, exposure, mutilation, abandonment, harsh discipline, and exploitation of child labor have been only some of the ways in which children have been mistreated. Infanti- cide-the killing of newborn infants with the explicit or implied consent of parents and the community-has been a form of birth control, a way of avoiding the embarassment of an illegitimate child, a method of disposing of a weak or deformed child, and a means of serving religious beliefs. Numerous religions have required that the first-born be sacri- ficed to an angry god. In some societies, female children were sacrificed because they were considered useless. Abandonment or exposure to the elements of a child who was unwanted or who could not be provided for was a form of infanticide that was common in ancient societies.' Ancient Greece knew exposure and infanticide well. The favorite figure in the comedy of the fourth century, B.C., was the child who had been exposed, saved, and later found by his parents. In Greece a child was the absolute property of his father, who had to decide whether he would live or die; on the fifth day after birth, at the ceremony of Am- phidromia, the father was forced to decide whether or not to receive the infant into the family. Under Greek law property was divided among the 4V. DE FRANCIS, CHILD ABUSE LEGISLATION: ANALYSIS AND STUDY OF MANDATORY REPORT- ING LAWS IN THE UNITED STATES 3 (1966). 5For an excellent detailed discussion of the fate of children in human history see PAYNE. For a more summary approach see Radbill, A History of Child Abuse and Infanticide, in THE BATTERED CHILD 3 (1968), [hereinafter cited as Radbill]. See also A. KADUSHIN, CHILD WELFARE SERVICES 30-36 (1967) [hereinafter cited as KADUSHIN]. 1972] CHILD ABUSE AND NEGLECT male children. Thus, the father might be inclined to raise the first son, while the second would be exposed in order not to dilute the inheritance. Girls were less important and more frequently exposed. The task of exposing a child was performed by a slave or midwife, who would take him to a public place early in the day, hoping that he might be rescued. Often, valuable objects were left with the child as an inducement to rescue.6 Under ancient Roman law the father had a power of life and. death (patriapotestas) over his children that extended into adulthood. He. could kill, mutilate, sell, or offer his child in sacrifice. While infanticide was not common in Rome, exposure was widespread. Although the exposed child usually died, he might be rescued for pity or for profit. A Roman mother, who was obliged to follow the order of the father, would sometimes arrange for the exposed child to be rescued. During periods of prosperity a Roman father might sell the services of his son under an arrangement akin to an apprenticeship or a labor contract. Eventually, however, some reforms came about: No child might be killed before the age of three; male children were to be saved, perhaps for military rea- sons. Later the law permitting infanticide was abolished, although in- fants could be sold into slavery. Under Emperor Hadrian, a father who had killed his grown son for committing a crime was banished under the maxim "patria potestas in pietate debet, non in atrocitate, consistere. ' ' 7 The Bible contains many references to infanticide. Whatever its historical accuracy, the Bible does reflect man's concerns throughout history. From the Old Testament we have the story of Abraham, whose loyalty to God was tested when he was instructed to offer his son, Isaac, as a burnt offering. A ram was substituted when God was satisfied of Abraham's faith and love." One writer has interpreted the Jewish tradi- tion of circumcision as a substitute for the religious sacrifice of human life by the command of God to Abraham.9 The story of Moses is a Biblical example of abandonment or exposure.10 Christianity began with 'See PAYNE 191-98. '1 W. BLACKSTONE, COMMENTrARIES § 452. This translates to read: Parental authority should consist or be exercised in affection, not in atrocity. For details on Roman law and practices see PAYNE 212-44. 'Genesis 22:1-13. 'PAYNE 159-60; Genesis 17:10 reads: "This is my covenant, which ye shall keep, between me and you and thy seed after thee; Every man child among you shall be circumcised." "Exodus 2:1-10. NORTH CAROLINA LA W REVIEW [Vol. 50 the Slaughter of the Innocents, when Christ escaped the order of King Herod that male infants be killed." There was a time in many Christian countries when children were whipped on Innocents Day in order to make them remember Herod's massacre. 12 Historically, infanticide has usually been accomplished by bloodless methods-strangulation, drowning, smothering, burial alive, and incin- eration-and often for a ritualistic purpose. In China, India, Mexico, and Peru, children were cast into rivers in an effort to bring fine harvests and good fortune. In other early cultures the blood and flesh of slain infants was thought to confer vigor and health, and, as a result, it was fed to expectant mothers or favored siblings. Kings were worshipped as gods in some ancient societies, and, therefore, were expected to assure good crops and prevent public catastrophes. If the king failed in his godly duties, his subjects expected him to give himself in sacrifice. Kings would sometimes offer a son as a sacrificial substitute.13 An ancient form of infanticide was the immurement of children in foundations of buildings and other structures.
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